1) OVERVIEW

1. Steps in the Federal Criminal Process

a. Pre-Arrest Investigation (leads to arrest or grand jury)
i.Reactive Investigations (govt/police/prosecutor arrests D in
reaction)
1. Complaint is charging document
2. Must follow procedure outlined below
ii.Proactive Investigations (prosecutor/govt gathering info)
1. Prosecutor can choose whether to bring the case to court by
arresting the D or by grand jury
iii.Prosecutorial Investigations (subpoenas, grand jury investigations,
and so on)
b. Arrest
i.Warrant?
ii.Booking
iii.Lockup
c. Post-Arrest Investigation
i.Lineups, Interviews, and so on
d. Decision to Charge
i.Prosecutorial Discretion: prosecutor decides whether there is
enough evidence to file charges. If so, the prosecutor prepares
complaint.
1. Justifications for Prosecutorial Discretion
(i) Legislative overcriminalization
(ii) Limitations in available enforcement resources
(iii) Need to individualize justice
1. Discretion makes it more likely that the crime will be
charged based on specific offense conduct and specific
offender characteristics.
2. But discretion creates a risk of discrimination and
arbitrary unfairness.
ii. General Rule: Huge Amount of Discretion
1. Discretion in whether to bring charges, what charges to bring,
when to drop charges, what investigations to bring, etc.
2. Some offices restrict discretion of line prosecutors.
iii.Model Rules of Professional Conduct limit pros actions
1. Prosecutor cannot bring charges he knows is unsupported by
PC
2. Prosecutor should make timely disclosure of all exculpatory or
mitigating evidence;
3. Prosecutor cannot seek unrepresented waiver of pretrial rights
(e.g. PH)
4. Prosecutor should refrain from extrajudicial statements
iv. Prosecutors overall duty: to do justice
1. ABA: Emphasis on prosecutor's responsibility to be a minister
of justice, not just an advocate.
2. Conflict in goals: At odds w/ responsibility to win the case in an
adversarial system
3. Means: obey rules, reduce disparities by treating similarly
situated Ds the same and different Ds differently; give accused
fair process; (at sentencing: advocate for sentence in
proportion to crime)
v. What may the prosecutor charge (which charge does
the pro bring to the GJ?)
1. General rule: huge amount of discretion, but less discretion
than the decision to charge initially
(i) A presumption of regularity attaches to pros
charging decisions, so courts presume pro is
acting properly when charging (Armstrong)
2. Limits on the pros decision of what to charge
(i) Prosecutorial guidelines
1. Most readily provable offense:
a. USAM 27.300: The prosecutor must charge
the most serious, readily provable offense (the
highest sentence under the guidelines)
b. But there is still flexibility in the USAM: pro can select
charges based on an individualized assessment
2. Individualized assessment:
a. Holder Memo: deciding what to charge should be
govern by an individualized assessment
b. Versus Ashcroft Memo: eliminated this message
3. Enhancement?
a. If seeking enhancement, decision to seek
enhancement must be based on an initial
appearance
4. Low-level case? (Federal priority?)
a. Holder 2013 Memo: federal pro should focus their
energy on fewer, most significant cases (shift policy
on drug cases, leave lower-level offenders to the
state)
(ii) Guidelines, however, expressly note they do not create any
rights for the defendant

vi. Judicial Review of the decision to prosecute
1. General rule: courts are extremely reluctant to review
pros decision to prosecute. Thus, judicial review of
the decision is highly proscribed. See Armstrong
(calling decision to charge a core executive
constitutional function)
(i) Indeed, a presumption of regularity attaches to all
of a pros charging decisions, so court will
assume the pro has acted properly (Armstrong)
1. Rationale: chill law enforcement, separation of powers,
competence: courts not equipped to analyze things like
strength of case or law enforcement priorities
2. Exceptions the general rule of no judicial review:
D can attack the charging decision by alleging
(i) Selective Prosecution:
1. Sounds in equal protection violationthe way
the prosecutor is implementing the statute
violates EP
a. Suspect class and quasi suspect---religion,
ethnicity, race, gender legit
b. Other categories---might mention
2. Standard for what D need to show to prevail on a
selective prosecution claim differs based on the
stage of the prosecution
a. Discovery: If D trying to get discovery to
prove a SP claim D must show some
evidence tending to show the existence of
both prongs to obtain discovery (Armstrong)
i. Armstrong court: High/rigorous standard,
b/c forcing a prosecutor to disclose
discovery is similar to (and runs similar
risks as) forcing a prosecutor to justify a
prosecution.
ii. McAdams: suggest discovery rule should
be a showing of disparate impact (large
disparity) (not adopted in Armstrong)
b. MTD: If D files a MTD for SPD must make
out a prima facie case of SP by showing clear
evidence of both prongs (Armstrong)
i. Higher evidentiary standard than some evidence
(see Jones: D passed discovery standard but not
prima facie standard)
3. Defendant needs to demonstrate both prongs of
the Armstrong test, DE and DP
a. Exceptions for discovery
i. If govt in some way can choose who will become
a D in a given case (sting)D need only show
some evidence of DE (first prong) to get discovery
(not need to show DP) (see Abraham Brown, class
discussion)
ii. If govt conduct is outrageous/obviously showing
prosecution propelled by racial animusD need
only show second prong, discriminatory purpose,
to obtain discovery (see Jones)
b. Exceptions for PF selective prosecution
claim (MTD)
i. DP onlyIf pro directly admits to discriminatory
purpose, D could meet selective prosecution claim
without showing discriminatory effect (suggested
in Armstrong, FN 3)
ii. BUT would need actual admission, not just
egregious behavior in Jones (smoking gun) (e.g.
emails, individual AUSA saying race is a factor to
decide)

4. Armstrong hurdles: To obtain discovery/prevail
on SP claim, D must demonstrate both:
a. 1
st
Discriminatory effect: To show
discriminatory effect, the D must demonstrate
different treatment of similarly situated
persons. Elements:
i. (1) Other people are similarly situated (they
have committed roughly the same crime)
(note: how broad is SS? Crack---heroine?
govt will want to argue facts that distinguish
this offense from other offenses, thus not SS)
ii. (2) Those people who committed the same
crime did not have the trait at issue (e.g. are
not black, not Muslim, etc)
iii. (3) Those people who committed the same
crime are 1) not being prosecuted OR 2) not
being prosecuted to the same degree as that
people w Ds trait are being prosecuted
(blacks, Episcopalians, etc)

(ii) 2 ways to prove that similarly situated
Ds are treated differently (McAdams: virtually
impossible, so most cases do not advance beyond
DE)
i. (1) Find SS (crack) people (white)
who are being pro in state court and not
federal court AND that those people are
known to federal law enforcement
ii. (2) Find SS people who are not being
prosecuted at all (e.g. find who was
arrested but never charged: Alison: really
hard to find this information
iii. (3) Abraham Brown: judge granted discovery
b/c the government was in the unusual
position of being able to proactively choose
potential Ds (sting operation)---no need to
show discriminatory purpose
b. 2
nd
Discriminatory purpose: D needs to show
the government intentionally singled out Ds of
that particular class for prosecution (e.g. black
2 WAYS prove
SIMILAR
situated
Ds), i.e. that the prosecutor was motivated by
racial/etc animus
i. Hard to prove: typically need to rely on
inferences b/c govt will rarely openly admit
discriminatory motivation
ii. Statistic evidence of disparate impact is
insufficient
iii. Typically needs showing of outrageous govt
conduct (see Jones: DP found b/c police did
discriminatory acts to black D but not white D
(T-shirts))

2. If D meets the Armstrong standard, (unclear exactly
what happens)
a. On a motion for Discovery: burden shift?
(Unclear)
i. (1) The burden shifts back to the govt to show:
Pros decision was rationally related to a
legitimate govt purpose (rational basis
review) (see Castillo)
ii. Alison: Unclear what would carry burden, but
probably govt would need to show the
different treatment among classes overall was
rationally related to a legitimate govt purpose
(e.g. increased deterrence)
iii. E.g. young speeder singled out b/c more
dangerous than older speeders, injury to black
crack users greater (b/c more are customers)
of black dealers
iv. (2) No burden shift, and court grants
discovery automatically (see Jones)
b. MTD: burden shift?
i. 6
th
Cir Rule: once D makes a prima facie case of
both Armstrong prongs, D has proven his
claim for selective prosecution----No burden
shift to govt (hard enough already for D to
meet both prongs, so D has shown enough)
3. Remedy? (unclear, SCOTUS has never decided)
a. McAdams: absence of statutory remedy explains why
there is not much of a legal right in the first place
b. Dismissal?
i. McAdams/Alison think dismissal is appropriate
ii. But strange b/c gives guilty windfall (but other
rules work like this too, e.g. suppression of
evidence)
c. Alternatives to dismissal
i. Force pro of similarly situated others (not
realistic), civil damages, sanctioning pro (but no
help to D)

(iii) Vindictive Prosecution:
1. VP happens when pro brings more serious
charges against D for the same conduct in
violation of due process
a. Defense: argue pro bringing higher charges
b. Pro: argue this is a new crime, not higher
charges (see Smith: no VP b/c judge felt pro
brought entirely new crime, not higher
charges)
2. Likelihood of D prevailing on VP claim is largely
affected by the timing of the more serious
charge: are we in the post or pretrial context?
(i.e. is the case pending?)
a. Because actual vindictiveness is nearly impossible to
prove, the issue of presumption is key
b. Defense: argue we are in the post-trial context
Blackledge appliesPOV
i. Not give-and-take plea bargaining, which would
suggest pre-trial, but post-trial
ii. Right at issue is not a right exercised in a pending
case, but one post-trial
c. Pro: argue we are in the pre-trial context
Goodwin/ Bordenkircher appliesno POV
(need actual V)
i. Pro has right to file new charges when law violated
ii. Pro merely engaging in legitimate pre-trial
bargaining for the new case (pre-trial context)
iii. Bordenkircher allows the prosecutor to threaten
additional charges against a D who asserts his
constitutional rightsit is equally alright to add
charges as it is to drop in exchange for guilty plea
3. Analyze both the post and pre-trial contexts
(in the alternative)
a. Defense: even if we are in pre-trial context, we can
show actual vindictiveness
b. Pro: even if we are in the post-trial context, we can
rebut the presumption
4. Post-Trial (Blackledge presumption of V applies)
a. Presumption of V attachesIf the prosecutor brings
more serious charges after D exercises a
constitutional right (seek new trial), the court will
automatically presume the prosecutor brought the
charges out of vindictiveness based on timing alone
(Blackledge)
i. Thus, due to this presumption, D does not need to
demonstrate the prosecutor acted with actual
vindictiveness (i.e. animus or bad faith)
ii. Due process violation requires dismissal
b. Rebutting the presumption: unclear what the standard
is (circuit split)
i. Blackledge FN 7: Govt has to show that it was
impossible to proceed with the more serious
charge at the outset. (e.g. only got enough NEW
evidence after the trial/appeal)
ii. Goodwin could have expanded the impossibility
standard, making it easier for the govt to rebut the
presumptionStandard for rebutting the
presumption in Goodwin FN8 is "objective
evidence justifying the prosecutor's action." Ct
then quotes the "impossibility" language from
Blackledge SO reading the standard in
context, still appears timing is the key issue
(so pro cannot rebut presumption with
evidence of legit intent)
iii. But circuit splite.g. 5
th
Circuit: has held that
prosecutor just needs a legitimate or non-
vindictive reason for his action.
5. Pre-Trial (Goodwinno presumption)
a. To prevail in the pretrial context, D needs to produce
evidence of actual vindictiveness
i. Actual vindictiveness: D must show that the only
reason the prosecution is bringing the charges is
to punish D.
ii. Evidence needed: a smoking gun, i.e. admission
that pro brought new charge to punish D for
exercising right
iii. D could point to the TOC (if previous trial)
iv. It's almost impossible to show.
b. Pro only needs a legitimate reason to believe the
defendant committed the crime
c.
e. Filing the Complaint
i.Must be filed prior to initial appearance
f. Magistrate Review of the Warrantless Arrest (Probable Cause
hearing)
i.Gerstein v Pugh probable cause review (for warrantless arrests)
judge determines whether, on the basis of the complaint, the
govt had PC to arrest the D
1. Takes place ex parte, on basis of complaint, soon after arrest
2. Must take place within a reasonable time from the arrest
(Gerstein)
3. Must occur within 48 hours of warrantless arrest (McLaughlin)
(?)
g. Initial Appearance
i. To keep D detained and to get a detention hearing, the
prosecutor must move for detention/continuance and
demonstrate one of section 3142s seven (f) factors.
1. Crime of violence (f)(1)(A)
(i) + Terrorism offense, sex trafficking of minors by force, fraud,
or coercion
2. Crime with maximum punishment of life or death (f)(1)(B)
3. Federal drug offense punishable by stat max >/= 10 years
from 21 USC 801 et seq (Controlled Substances Act of
1970), 21 USC 951 et seq, 46 USC 70501 (trafficking with
vessel) (f)(1)(C)
4. Felony case + client has 2 priors that are especially serious
(crime of violence, crime punishable by life or death, or drug
case with 10 year maximum) (f)(1)(D)
(i) Prior convictions can be in state or local offenses if they
would have been offenses described above if there had
been federal jurisdiction. (f)(1)(D)(b)
5. A non-violent crime that involves a minor victim, possession of
a firearm or destructive device, or failure to register as a sex
offender (f)(1)(E)
6. Serious risk of persons flight (f)(2)(A)
(i) Risk must be serious
(ii) Judge can motion for hearing if prosecutor fails to motion
under (f)(2)(A)(B).
7. Serious risk that person will or attempt to obstruct justice or
threaten a witness or juror (f)(2)(B)
(i) Risk must be serious
(ii) Judge can motion for hearing if prosecutor fails to motion
under (f)(2)(A)(B).
ii. Dangerousness
1. Dangerousness alone will not grant detention hearing---in
addition, prosecutor must show one of the seven (f) factors
iii.Judge has discretion to motion for detention hearing in some
circumstances:
1. No detention hearing if prosecutor fails to motion under
numbers (1) through (5) above ((f)(1)(A)(E)).
2. Judge can motion for hearing if prosecutor fails to motion
under (6) or (7) above ((f)(2)(A)(B)).
iv. Outcome
1. If (f) factor the hearing will take place 3 (govt) to 5 (defense)
days after the IA
(i) Does not include weekends/holidays
(ii) No remedy if rule is violated
2. No (f) factor judge will deny govts motion for a hearing and
release the person
h. Bail Hearing/Detention Hearing
i. Under the Bail Reform Act, there is a presumption of release.
ii. The judge shall order release UNLESS the prosecution
demonstrates that
1. The D is flight risk such that no condition or combination of
conditions will reasonably assure the defendants
appearance in court as required (e)(1) OR
(i) Must prove appearance by POE
(ii) Opportunity (funds) alone insufficient
2. The D is a danger to the community such that no condition or
combination of conditions will reasonably assure the safety
of the community (any other person) (e)(1)
(i) Must prove dangerousness by clear and convincing
evidence (see (f)(2))
iii. Does Ds crime trigger a rebuttable presumption of
flight/danger?
1. (e)(2) Rebuttable presumption of dangerousness attaches
when
(i) Ds alleged crime is: a
1. Crime of violence (f)(1)(A),
2. Crime with maximum punishment of life or death (f)(1)(B),
3. Federal drug offense punishable by stat max >/= 10
years (f)(1)(C), or
4. Felony case + client has 2 priors that are especially
serious (crime of violence, crime punishable by life or
death, or drug case with 10 year maximum) (f)(1)(D)
AND
(ii) AND Judicial officer finds that in the last five years D was
convicted of a prior (f)(1) crime (+ non-violent crime involving
minor victim, firearm/DD possession, or fail to register as sex
offender) that the D committed while on release pending trial
2. RP of dangerousness and flight attaches for
(i) offense is drug offense with stat max of at least 10 years,
or
(ii) offense is for carrying or using gun during a felony, or
(iii) offense involving terrorism, or
(iv) offense involving conspiracy to kill, kidnap, maim, or injury
outside of US, or
(v) offense of holding person in position of peonage; or
(vi) offense involving a minor victim is one of various listed
offenses
3. If RB, of dangerousness/fight attaches, D must rebut the
presumption of dangerousness/flight by producing evidence
he will not flee or endanger community. Dominguez.
(i) Burden of production is not heavyD can produce anything
that would militate against presumption of flight or
dangerousness (anything in 3142(g))
(ii) Burden of persuasion always rests with the govt
iv. Factors judge will consider under section (g)
1. Concerning present offense
(i) Nature of offense
(ii) Weight of evidence (least important b/c not much info)
(iii) Whether person was on parole, probation, or release at time
of offense,
2. Ds own characteristics/history
(i) Character
(ii) Physical and mental condition
(iii) Family ties
(iv) Employment,
(v) Financial resources,
(vi) Length of residence in community
(vii) Community ties
(viii) Past conduct
(ix) Drug or alcohol history
(x) Criminal history (arrests insufficient: Dominguez)
(xi) Record concerning appearance at prior proceedings),
3. Nature and seriousness of the danger to any person or the
community that would be posed by the persons release
v. Limits
1. Every bail determination must be made on the particular facts
of the case and defendant (Stack v Boyle)
(i) Suggests that bail schedules unconstitutional
2. Cannot impose a financial condition that results in detention
(i) Bandy: unconstitutional to fix excessive bail to assure D
does not gain freedom
i. Preliminary Hearing
i. Purpose: 1) allows a neutral judge to screen the case, and 2)
ensures the wrongfully charged are released promptly
1. Screening function dubious in federal system b/c Govt can
bring indictment anyway (but see Sutter: PH mattered)
ii. Right to the Preliminary Hearing (statutory right under fed rules)
1. Under FRCP 5.1(a), a preliminary hearing is required unless
(i) D waives the right to PH
(ii) Prosecutor indicts D (goes to Grand Jury)
1. ABA Standard says prosecutor shouldn't obtain a
continuance solely for the purpose of mooting the
preliminary hearing by taking the case to the grand jury
for an indictment.
2. Prosecutors do sometimes try to take a case to the
Grand Jury very quickly in order to avoid a preliminary
hearing, but they don't often ask for continuances to
sneak stuff to the Grand Jury
(iii) D agrees to proceed by information (if felony)
1. D gives up right to both PH and indictment
2. I.e. D basically acknowledges govt has PC (rare)
(iv) For misdemeanor, Prosecutor brings information
1. PH are not required for misdemeanors
2. There is no constitutional right to a preliminary hearing under
the 4
th
, 5
th
, or DPC
(i) 4th Am does require judicial review of PC to detain, but that
determination does not require a full-blown adversarial or
evidentiary proceeding.
1. Can be done either ex parte or by reviewing the
complaint (Gerstein review)
iii. If preliminary hearing held,
1. Timing
(i) If D is in custody, w/in 14 days of arrest
(ii) IF D is out on bond, w/in 21 days of arrest
2. Right to Counsel
(i) D has a 6
th
Am right to appointed counsel to assist D at all
critical stages of the prosecution (Coleman)
1. Critical stage a stage where the presence of counsel is
necessary to preserve the Ds basic right in a fair trial
(cross witness and have assistance of counsel at trial)
(ii) In Coleman, the Supreme Court held the preliminary hearing
is a critical stage once a jurisdiction grants the right to a
preliminary hearing (by statute, etc.), the right to council is
constitutionally required
1. I.e. 6th Am requires indigent defendants to have
appointed counsel to assist them at preliminary hearings.
2. BUT Lower courts have held violations of the right to
counsel is reversible error only where D can point to
specific aspects of the trial where he was adversely
impacted by his lack of counsel at the preliminary hearing
3. Procedures / requirements
(i) 5.1 (e) D can cross-examine witnesses and introduce
evidence (to defeat finding of PC)
(ii) Rules of evidence do not apply
1. D cannot argue evidence was unlawfully obtained to
defeat a finding of PC
2. I.e. finding of PC can be based entirely on hearsay
(iii) 5.1(g) proceeding but be recorded, and parties can request
transcripts
(iv) Rule 26.2 applies
1. Govt must turn over to D statements made by testifying
witnesses
4. Objectives of the parties
(i) PC Standard: (tie all questions to PC)
1. Under FRCP 5.1(e), the judge must ensure the
prosecution has
a. PC on each element of crime to show that crime has
been committed and
b. PC that defendant has committed the crime
2. PC is easy to meet/mushy/loose
a. See E.g. Sutter PH: 2 Ws ID = PC
3. If no PC found (rare)doesnt matter, really
a. Under 5.1(f) if magistrate finds no probable cause to
believe offense was committed or D committed it,
must dismiss complaint and release
i. BUT government can still later prosecute D for
same offense (via indictment) (second bite at
apple) (usually happens in federal cases)
(ii) Govt: establish PC (primary)
1. Note: in practice, govt does not want a PH (b/c must turn
over statements of Ws, locks Ws in for impeachment)
2. In practice, pro will exchange early discovery for a waiver
of PH
(iii) Defenses objectives during the PH (from Coleman)
1. Primary objective: negating PC
a. I.e. D will want to expose weaknesses in Govts case
through cross-examination
2. Discover the Govts case (under the table reason)
a. Courts often object that this is an illegitimate objective
b. Naked discovery forbidden: Courts sometimes cut off
questioning that seems more about discovery than
about negating PC
i. I.e. it is obvious D is gathering evidence through
cross, e.g. asking for names of Ws or types of
police investigating methods (which would help
with later suppression arguments)
ii. Admissibility of evidence is not relevant except as
it relates to PC
iii. D will need to link all questions to ultimate PC
question (or improper)
3. Create impeachment for trial by locking witnesses in (or
can preserve the testimony of a witness who later
becomes unavailable)
a. Defense can even lock in witnesses who arent
present by getting case agent to tell Court what
Witness X said.
4. Evidence can aid counsel in bail arguments.
a. E.g. counsel can use information that D did not flee
when approached by police, which goes to risk of
flight
j. Grand Jury Review
i.Mandatory only when jurisdiction requires indictment
ii.Sword and Shield
1. Shield of screening mechanism
(i) Shield against arbitrary prosecution: GJ Stands between
accuser and accused; prevents govt from unfounded
allegations.
(ii) S Ct has unrealistic idea of the shield role (see Costello,
Williams)
2. But
(i) Ex parte (so not much shield function)
(ii) Prosecutor works with GJ, explains law, brings witnesses in
(iii) Little constitutional protections (5th double jeopardy/6
th
right
to counsel)
(iv) Lack of rights and structure of GJGJ refuses to indict in
only ~2% of cases.
3. Sword for govt because of investigatory function
iii.PC standard for indictment: To indict, the GJ must find the govt has
enough PC to show a all the elements of a crime committed and
that this D committed the crime
1. Indictment is necessary for the case to move forward
(i) So here, D is trying to get the indictment dismissed via any
evidentiary challenges/misconduct (limited)
2. If GJ finds no PC, govt can bring indictment over and over
iv. FRCP 6
v. To make a showing of PC (any evidentiary challenges?)
1. GJ decision is unreviewable on the merits: D cannot challenge
the quality/sufficiency of the evidence (Costello)
(i) Otherwise, mini-merits trials before the actual trial (ex
parte; efficiency)
(ii) GJ is a separate entity from the courts (accusatory, not
adjudicative) (Williams)
1. Courts dont have supervisory powers to proscribe the
standards of prosecutorial conduct.
2. No 6
th
Am right to counsel at this stage
3. Exculpatory evidence: not required to present to GJ
(i) Prosecutors are not required to present exculpatory
evidence to the grand jury (Williams)
1. So D cannot ask the Dis court to dismiss an otherwise
valid indictment because the government failed to
disclose exculpatory evidence to the grand jury.
a. But see:
i. USAM: prosecutors have to present significant
exculpatory evidence to GJ.
ii. Stevens dissent: failure to produce EE is
prosecutorial misconductadvocates for USAM
rule
iii. -----Pro has duty not to do anything that would
bring about a wrongful conviction, and by
extension, also a duty not to do anything that
would lead to a wrongful prosecution.
2. Williams: pro did not present exculpatory evidence that
negated the Ds intent to defraud (loan)
4. It is permissible for the govt to bring to the GJ:
(i) Evidence obtained in violation of Ds 4
th
Am rights (i.e. D
cannot invoke the exclusionary rule to forbid the GJ from
hearing evidence/no 4
th
Am challenges) (Calandra)
1. Calandra: Costello rationale also bars a challenge to an
indictment issued on the basis of unconstitutionally
obtained evidence; grand jury can question a witness
about suppressed evidence (obtained via unconstitutional
search)
a. GJ is allowed to question a witness about evidence
that has been suppressed because of a 4th Am
violation
b. See outline for reasons why Calandra is wrong
2. BUT see USAM: prosecutors can use hearsay but cant
use evidence that was obtained in violation of
constitutional rights (manual is not binding)
(ii) Statements obtained in violation of 5th Am are admissible
(see Williams)
(iii) Hearsay evidence (Costello)
1. Permissible under the USAM also
2. Costello: Sustained a conviction where a defendant was
indicted only on the basis of hearsay evidence presented
to the grand jury.
(iv) Inadequate and incompetent evidence (Costello citing Hold v
United States: indictment cant be quashed because
evidence is incompetent)
1. Alternative rule: Burton concurrence in Costello:
a. Majority rule is too broad
b. Need to allow indictment to be challenged when there
is no persuasive evidence for indictment, otherwise
the 5th Am GJ clause isnt serving its protecting
purpose.
(v) Previously suppressed evidence in order to obtain a
superseding indictment (Puglia)
(vi)
(vii) (not read) Bracey an indictment need not be
dismissed b/c a witness admittedly committed perjury before
the grand jury
5. Potential limits on the GJ (for the D to assert to defeat PC)
(i) 5
th
Am right to silence: govt cannot force a W with a valid 5
th

Am right to testify at the GJ
1. In this vein, govt cannot force W to turn over incriminating
documents
2. BUT if govt offers immunitycan force W to testify
(ii) GJ itself (as opposed to the police) cannot violate const
(dicta in Calandra/Puglia (7
th
Cir))
1. Subpoenas: GJ cannot issue a subpoena that invades a
legitimate privacy interest under the 4
th
Am or otherwise
violates a property interest under the 4th Am. (See
Silverthorne)
2. But GJ are not themselves violating witness's rights when
they use evidence that was obtained by someone else in
violation of the 4th Am.
(iii) Silverthorne:
1. Held: 4
th
Am prevents use of illegally seized evidence at
GJ stage (opposite from Calandra) (GJ cant issue
subpoena based on evidence obtained illegally under 4th
Am)
2. key facts Calandra used to distinguish
a. Silverthorne: Ds were already charged (indicted),
while Calandra was only a witness (immunity), so C
does not have standing
b. In S, govt sought evidence for ongoing trial (not for
pre-indictment investigation); C: pre-indictment
3. BUT Alison: there was no difference b/w the facts of
Puglia and Silverthorne, yet the GJ heard the evidence in
Puglia anyway (so Silverthorne wont help Ds)
a. Also distinctions in Calandra do not make a
difference, so Calandra really overruling Silverthorne
(if Silverthornes facts repeated, result would be GJ
heard evidence)
vi.
k. Filing of Indictment or Information
i.When is indictment unnecessary?
1. Misdemeanor
2. Felony, but prosecutor and defendant agree it can be
prosecuted by Information
l. Arraignment on Information or Indictment
i.Acknowledge receipt of indictment
ii.Waive formal reading of indictment
iii.Enter a plea of not guilty
1. No discovery yet!
m. Pretrial Motions
n. Guilty Plea Negotiation and Acceptance
o. Trial
p. Sentencing
q. Appeals
r. Collateral Remedies